Proude v. Whiton
New York Supreme Court
Motion on report of referee, pleadings and affidavits, by plaintiff, on a claim against executors, that judgment be entered on the report with costs, and by defendant that referee make a further report.
1Opinion of the Court
■Welles, Justice.
Both motions must be denied. It does not appear that the plaintiff ever requested a reference under the statute before action brought, nor that the defendant ever refused such reference. The defendant positively denies in his affidavit, that any one ever proposed a reference, or that he ever refused to consent to one.'
There must be a refusal or something equivalent. ¡Neither appears in this case. A neglect to answer an offer or proposition to refer, may be deemed a refusal, but the creditor must first move on the subject of the reference. In Fort agt. Gooding, (9 Barb. S. C.…
2Cited by4 opinions
- Ehrenreich v. LichtenbergAppellate Terms of the Supreme Court of New York · 1899
- Murray v. SmithThe Superior Court of New York City · 1863
- Lamphere v. LamphereNew York Supreme Court · 1900
- Lamphere v. LamphereNew York Supreme Court · 1900